Opinion
Claim No. 128869
08-02-2023
Louis Bracero, Claimant, v. The State of New York, Defendant.
Claimant's attorney: Mario Vasquez & Associates PC, By: Mario A. Vasquez, Esq. Defendant's attorney: Hon. Letitia James, Attorney General of the State of New York, By: Elizabeth A. Gavin, Assistant Attorney General.
Unpublished Opinion
Claimant's attorney: Mario Vasquez & Associates PC, By: Mario A. Vasquez, Esq.
Defendant's attorney: Hon. Letitia James, Attorney General of the State of New York, By: Elizabeth A. Gavin, Assistant Attorney General.
WALTER RIVERA, J.
The following papers numbered 1-3 were read and considered by the Court on claimant's motion for summary judgment on the issue of liability and oral argument was heard on May 16, 2023 and May 23, 2023:
Notice of Motion, Claimant's Supporting Affidavit, Attorney's Memorandum of Law and Exhibits 1
Attorney's Affirmation in Opposition 2
Attorney's Reply Affirmation 3
Filed papers: Amended Claim, Second Amended Claim
Claim No. 128869 was filed with the Court on November 30, 2016 and an Amended Claim was filed on January 6, 2017. By Decision and Order of this Court dated March 10, 2022, claimant's unopposed motion for leave to serve and file a Second Amended Claim alleging a cause of action of vicarious liability for Rodriguez's excessive use of force was granted (Bracero v State of New York, UID No. 2022-054-016 [CTCL, Rivera, J., Mar. 10, 2022]). A Second Amended Claim was served upon the State and filed with the Court on April 5, 2022. Any general references to the claim in this Decision and Order includes the allegations of the Second Amended Claim.
This claim arises out an incident that occurred at approximately 7:30 a.m. on September 8, 2016, during claimant's incarceration at Fishkill Correctional Facility (Fishkill). Claimant was 63 years old at the time of the incident and had been incarcerated since 1992 (Second Amended Claim, ¶ 10). He wore glasses and a hearing aid (id.). The State does not dispute the facts as set forth in paragraphs 1through 6 of claimant's supporting affidavit and the State affirms that "[t]here is no dispute" that claimant was "viciously assaulted by [Correction Officer] Christopher Rodriguez" and that Rodriguez was subsequently terminated from employment due to the incident (State's Opposition, ¶¶ 3, 12; Ex. 45).
According to claimant's supporting affidavit, on the date of the incident, claimant finished breakfast in Fishkill's mess hall and proceeded to the exit when he was directed to dispose of some food waste (Claimant's Supporting Affidavit, ¶ 3). Claimant complied and exited (id.). As soon as he walked through the exit door, claimant was approached from behind by Rodriguez (id.). Rodriguez directed claimant to place his hands on the wall in a pat frisk position and claimant complied (id. at 3-4). Rodriguez then asked claimant for his identification and claimant responded that his identification was in his left pocket (id. at 4). Rodriguez repeated the request and claimant repeated his response (id.).
It is noted that claimant's supporting affidavit dated November 10, 2022 does not refer to Rodriguez by name; however the Second Amended Claim filed with the Court on April 5, 2022 identifies Rodriguez by name.
Rodriguez then suddenly and forcefully pushed the left side of claimant's head into the wall and punched claimant in the right ear (id.). Claimant's glasses flew off as he covered the right side of his face and his ear with his arm (id. at 5). Rodriguez then punched claimant repeatedly in his rib cage and face, approximately four times (id.). Claimant found himself on the ground in a fetal position when Rodriguez punched claimant again on the right side of his face (id.). Rodriguez put his knee into claimant's rib cage and leaned on top of claimant (id.). As claimant tried to protect his rib cage, Rodriguez punched claimant in the right side of his face 4 to 5 times (id.). Claimant could feel blood covering his face and his arm was bleeding (id. at 5). Claimant felt pain in his head (id.). Claimant's ears were ringing and he felt blood oozing from his right ear (id.). Claimant's affirmation states: "I think I lost consciousness for some moments, I don't know how long it went on for but at the time it felt like forever, and when I came to, I was being pulled by the legs and I felt a horrible pain in [the] ribs"(id.). Claimant was then forcefully pulled from the fetal position, handcuffed, and then forcefully raised by the handcuffs (id.). According to claimant, "[t]he pain was unbearable" (id.).
The claim alleges that the State is liable for Rodriguez's conduct based upon the following causes of action: negligent supervision and retention of Rodriguez, vicarious liability for Rodriguez's use of excessive force, vicarious liability for Rodriguez's assault and battery, and Rodriguez's negligent infliction of emotional distress (Second Amended Claim, ¶¶ 52-76). Claimant moves for summary judgment on all of the alleged causes of action, arguing that the there are no issues of material fact and that a determination of liability against the State is warranted as a matter of law.
The Court notes that the allegation of negligent supervision and retention, set forth as a First Claim of Relief at paragraphs 51 through 56 of the Amended Claim and at paragraphs 52 through 57 of the Second Amended Claim, refers only to Rodriguez and does not refer to Officer Stuetzle. The Attorney's Memorandum of Law at page 75, however, expands the allegation to include Stuetzle, and does not again refer to Stuetzle in the conclusion set forth at page 102 of the Attorney's Memorandum of Law. This Court shall address the allegation as alleged in the Amended Claim and the Second Amended Claim, pertaining only to Rodriguez.
In support of his motion for summary judgment, claimant argues that Rodriguez's conduct on September 8, 2016, was, or should have been, foreseeable to the New York State Department of Corrections and Community Suspension (DOCCS) during the 4½ years of Rodriguez's employment prior to the incident. While the State's position at oral argument was that summary judgment should be awarded to the State dismissing the claim, the State also argues at page 2 of its Attorney's Affirmation in Opposition to claimant's motion that the issue of whether Rodriguez's assault upon claimant was foreseeable "must be resolved at trial." As set forth below, the parties present this Court with several arguments on the issue of forseeability.
Claimant cites to the testimony provided at Rodriguez's arbitration hearing on July 31, 2018 by Sergeant Keith Montgomery, who supervised Rodriguez from 2014 through 2015 in the Special Housing Unit (SHU) (Ex. 42). Claimant argues that Montgomery's testimony establishes that Rodriguez was involved in "quite a high number" of uses of force and is thus a basis for finding that Rodriguez's use of force on September 8, 2016 should have been foreseeable to DOCCS (Attorney's Memorandum of Law, p 76; Ex. 42, p 305). The State argues that claimant's characterization of Montgomery's testimony is "highly misleading" because claimant cites to only part of the testimony (Attorney's Affirmation in Opposition, p 3). The State points to Montgomery's testimony that "given the nature of that block, we did have a lot of use of forces. Upwards of probably 57 in the first year. Which, again, it is part of the job and Officer Rodriguez was probably involved in 75 percent of those. So quite a high number" (Ex. 42, p 305). The State also points to Montgomery's testimony that, "Rodriguez was one of those officers that when involved in a use of force, always performed professionally. Always got it to the point where, you know, not only was the situation taken care of, but it was taken care of properly" and that Montgomery never witnessed Rodriguez use unnecessary or illegal force (id. at 307-308).
Claimant also cites to Rodriguez's employment history with DOCCS and notes that a DOCCS Probationary Period-Evaluation Report, dated September 12, 2012, indicates that Rodriguez took matters "into his hands instead of following supervisory directives" (Attorney's Memorandum of Law, p 76; Ex. 47). The State counters, noting that the report also states, "Officer Rodriguez is a fair to good officer, he has a tendency to forgo what he is told by Sr. officers and do what he deems is 'proper.' He does have the ability to improve with time and experience" (Ex. 47, p 27).
Claimant also notes that Rodriguez was the "subject of a formal counseling memo in 2014 while assigned to SHU-200 for actions deemed likely to provoke [incarcerated individuals]" (Attorney's Memorandum of Law, p 76; Ex. 48). The State points out that the memo involved an incident of "unprofessional conduct" on January 13, 2014 when Rodriguez struck an incarcerated individual's cell with a baton (Ex. 48). The State further maintains that the incident did not involve an unprovoked attack or a use of excessive force that would put the State on notice that Rodriguez had a propensity to violently attack an incarcerated individual without cause.
Claimant also cites to a Notice of Discipline dated July 27, 2015, where Rodriguez received a 60-day suspension without pay while assigned to SHU (Ex. 46). The State notes that the incident involved Rodriguez's conduct on June 24, 2015 of acting "without supervisory authorization" in opening a cell door to enter a cell to retrieve a feed up tray without a second officer being present and permitting the incarcerated individual to exit his cell without the use of mechanical restraints (id.). Again, the State argues that the incident is not one which would put the State on notice that Rodriguez had a propensity for violence, without cause. The Court notes that the subject Notice of Discipline indicates that Rodriguez's actions "resulted in an [incarcerated individual] use- of-force"(id.).
As noted above, the State posited at oral argument that since the material facts of the assault and battery upon claimant on September 8, 2016 are undisputed, the Court may award summary judgment. The State further argued that, pursuant to CPLR 3212 (b), the Court should award summary judgment to the State dismissing all the allegations of the claim. In that regard, the State argues that the conduct of Rodriguez was not in furtherance of the State's business, was not within the scope of Rodriguez's employment, and was not reasonably foreseeable by DOCCS. Therefore, the State maintains that, as a matter or law, the State cannot be held liable on the causes of action based upon: negligent supervision and retention of Rodriguez, vicarious liability for Rodriguez's use of excessive force, and vicarious liability for Rodriguez's assault and battery. As to the cause of action of Rodriguez's negligent infliction of emotional distress, the State argues that said cause of action is not applicable to the facts of this matter and therefore warrants dismissal. The State maintains that claimant's allegation of emotional distress is more appropriately considered as an element of his alleged damages and not an independent cause of action.
Analysis
Summary judgment is a drastic remedy which should not be granted unless it is made clear by the proponent of the application that there are no genuine issues of material fact (see Andre v Pomeroy, 35 N.Y.2d 361, 364 [1974]). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the absence of any material issues of fact (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]; Zuckerman v City of NewYork, 49 N.Y.2d 557, 562 [1980]). "Failure to make such [a] prima facie showing requires a denial of the motion regardless of the sufficiency of the opposing papers" (Alvarez, 68 N.Y.2d at 324; see Winegrad, 64 N.Y.2d at 853).
The Court is mindful that the material facts of the incident that occurred on September 8, 2016 are undisputed. In that regard, this Court finds that the Court of Appeals cases of Rivera v State of New York (34 N.Y.3d 383 [2019]) and Riviello v Waldron (47 N.Y.2d 297[1979]) are controlling on the causes of action alleging that the State is vicariously liable for Rodriguez's assault, battery and excessive use of force.
In Riviello (47 N.Y.2d 297, 303), the Court of Appeals set forth a multi-factored test to be utilized by a fact finder in weighing and assessing whether an employee's conduct falls within the scope of employment. The multi-factored test requires the fact finder to consider: "the connection between the time, place and occasion for the act; the history of the relationship between the employer and employee as spelled out in actual practice; whether the act is one commonly done by such an employee; the extent of departure from normal methods of performance; and whether the specific act was one that the employer could reasonably have anticipated." The Court of Appeals further stated in Riviello (47 N.Y.2d at 304) that, "it bears noting that for an employee to be regarded as acting within the scope of his employment, the employer need not have foreseen the precise act or the exact manner of the injury as long as the general type of conduct may have been reasonably expected."
In Rivera (34 N.Y.3d 383), the Court of Appeals was presented with an undisputed factual scenario similar to the undisputed facts of the instant case, and, in determining that an award of summary judgment was appropriately granted to the State dismissing the claim of assault and battery, the Court of Appeals applied the multi-factored test set forth in Riviello (47 N.Y.2d at 303).
The undisputed facts of Rivera involve a claimant, incarcerated at a prison operated by DOCCS, who entered the mess hall one morning when a Correction Officer Michael Wehby mocked claimant for wearing a medically-issued protective helmet that he was required to wear due to a seizure disorder. Claimant, fearing harassment from other incarcerated individuals, asked Wehby not to make fun of the helmet and claimant proceeded to the food serving line.
Wehby called claimant back to the doorway of the mess hall and the following ensued:
"[w]hen claimant obliged, Wehby grabbed claimant's jacket, pulled him outside the mess hall and began punching him on the face and head. Claimant was forced to his knees while Wehby hit and stomped on [claimant], at which point two other correction officers...pushed claimant down and applied handcuffs. Wehby removed claimant's helmet and continued the assault, yelling expletives and saying in substance, 'I hope you die.' While immobilized on the floor, claimant was punched, kneed and kicked in the head. At this juncture, Wehby struck claimant in the head with his radio with such force that the battery became dislodged and hit the wall. Eventually, claimant lost consciousness. During the prolonged, brutal attack, claimant did not resist or fight back, sustaining serious injuries... All three correction officers lost their jobs"(Rivera, 34 N.Y.3d at 386).
A claim was brought in the Court of Claims alleging that the State was vicariously liable for Wehby's assault and battery and claimant sought summary judgment based upon the undisputed facts. The State cross-moved for summary judgment dismissing the claim. The Court of Claims granted the State's cross-motion for summary judgment, holding that Wehby's attack was, "as a matter of law, outside the scope of employment" (id. at 388). The Court of Claims found that there was no reasonable connection between the assault and battery and the duties normally performed by correction officers, deeming the attack a substantial departure from the normal methods of performance (id.). The Court of Claims reasoned that the abhorrent and unprovoked attack was wholly attributable to personal motive, reflected by the lack of any plausible justification for such vicious force (id.). The Court of Claims further reasoned that DOCCS could not have reasonably anticipated that Wehby would act in such a heinous way and that therefore there was no viable basis upon which the State may be held liable for the assault and battery (id.). The Appellate Division unanimously affirmed for the reasons stated by the Court of Claims (Rivera v State of New York, 162 A.D.3d 1571 [4th Dept 2018]).
The case continued to the Court of Appeals where claimant argued that the Court of Claims had erred in granting summary judgment to the State. Claimant argued that Wehby's conduct was within the scope of his employment and therefore the State is vicariously liable under the doctrine of respondeat superior for the assault and battery. The Court of Appeals was not persuaded by claimant's arguments and found that "no reasonable factfinder could conclude that the assault constituted action taken within the scope of employment" and that the Court of Claims did not err in determining that the State could not be held vicariously liable for the assault and battery (id. at 388). The Court of Appeals concluded that "the extent of departure from normal methods of performance; and whether the specific act was one that the employer could reasonably have anticipated," do not support a finding of respondeat superior responsibility attributable to the State for the officer's conduct (id. at 390).
The Court of Appeals explained that, under the doctrine of respondeat superior, an employer can be held vicariously liable for the tortious acts of its employee" 'so long as the tortious conduct is generally foreseeable and a natural incident of the employment'" and" 'only if those acts were committed in furtherance of the employer's business and within the scope of employment'" (id. at 389, internal citations omitted). Thus, if the employee acts for their own purpose and departs from the line of duty for a period of time, the employer is not liable (id.).
In determining whether Wehby had acted within the scope of his employment for purposes of vicarious liability, the Court of Appeals considered, among other relevant factors, the multi-factored test set forth in Riviello (47 N.Y.2d at 303). The Court of Appeals found that:
"[a]lthough the officers were on duty and the assault occurred at the prison while Wehby supervised [incarcerated individuals] in the mess hall- satisfying the time, place and occasion factor - the other factors do not support respondeat superior liability. The brutal beating can be characterized neither as an 'irregular[]' performance of duty nor a mere 'disregard of instructions' - the attack was not in furtherance of any employer-related goal whatsoever' (citing Riviello at 302)"(Rivera, 34 N.Y.3d at 390). The Court of Appeals noted that in occupations where some physical conduct with others is permissible or expected, it may be difficult to determine whether a challenged action falls far enough outside the boundaries of the employment relationship such that the employee should be solely liable for the conduct. In such cases, the question presented is one of degree and not kind, which should be left for the fact finder to determine regarding the issue of vicarious liability (id.). In Rivera, however, the Court of Appeals found that "this is not such a case" (id.).
The Court of Appeals acknowledged that correction officers, at times, use excessive force and that "[s]uch conduct will not fall outside the scope of employment merely because it violates department rules or policies or crosses the line of sanctioned conduct" (id. at 391). The Court of Appeals emphasized that under the multi-factored test for determining respondeat superior liability, an employee's deviation from directions or governing standards is "only one consideration in the analysis" (id.). The Court of Appeals then concluded in Rivera that the "gratuitous and utterly unauthorized use of force was so egregious as to constitute a significant departure from the normal methods of performance of the duties of a correction officer as a matter of law. This was a malicious attack completely divorced from the employer's interests" (id. at 391). The Court of Appeals further found that:
"there is no evidence in the record that DOCCS should-or could- have reasonably anticipated such a flagrant and unjustified use of force, in which, assisted by other officers who immobilized and handcuffed claimant, Wehby repeatedly punched and kicked him during a prolonged assault, removing claimant's protective helmet in order to facilitate more direct blows to the head. As such, based upon the uncontested facts, it is evident that claimant's injures were not caused by actions taken within the scope of employment and thus, there were no triable issues of fact as to the State's vicarious liability for assault and battery"(id.).
So too here, the Court finds that, although Rodriguez was on duty and the assault, battery, and use of excessive force occurred at Fishkill while Rodriguez supervised incarcerated individuals in the mess hall- satisfying the time, place and occasion factor - the other relevant factors considered do not support a finding of respondeat superior liability attributable to the State for the allegations of assault, battery and excessive force (Rivera, 34 N.Y.3d at 390). As in Rivera, this Court finds that the brutal beating cannot be characterized as an irregular performance of duty or a mere disregard of instructions. Rather, this Court finds that Rodriguez's vicious attack upon claimant was a significant departure from the normal methods of performance of the duties of a correction officer, as a matter of law, and that Rodriguez's conduct was completely divorced from the interests of his employer. As in Rivera (34 N.Y.3d 383), this Court also finds that no reasonable fact finder could conclude that the attack upon claimant was in furtherance of any employer-related goal whatsoever or constituted action taken within the scope of Rodriguez's employment by DOCCS.
Additionally, upon careful consideration of the arguments made by counsel and the exhibits before this Court regarding Rodriguez's employment with DOCCS during the 4½ years prior to the incident, this Court finds that claimant has failed to meet his burden of demonstrating that DOCCS should have, or could have, reasonably anticipated such a flagrant and unjustified use of force by Rodriguez on September 8, 2016 (see Troy v Fagelman, 190 A.D.3d 533, 534 [1st Dept 2021] ["The court properly concluded as a matter of law that the receptionist was not acting within the scope of her employment when she had a physical confrontation with plaintiff, because the conduct alleged by plaintiff was a significant departure from normal methods of performance of the job. Furthermore, defendants could not reasonably have anticipated the conduct in that the employee worked for them for eight years and this was the first such encounter" (citing Rivera, 34 N.Y.3d 383)]). Notably, claimant does not cite to any use of excessive force by Rodriguez prior to the incident and the Court finds that the extent of Rodriguez's departure from the normal methods of performance was heinous and one that could not, as a matter of law, have been reasonably anticipated by DOCCS.
Accordingly, this Court finds that, there are no triable issues of material fact as to the State's vicarious liability regarding the allegations of assault, battery and excessive force and that summary judgment dismissing said allegations is warranted (see Rivera 34 N.Y.3d 383; Riviello 47 N.Y.2d 297; Summors v Port Auth. of NY & N.J., 203 A.D.3d 558 [1st Dept 2022] [The claim of respondeat superior liability for employee's tortuous conduct warranted dismissal as a matter of law because the plaintiff could not establish that the employee was on duty at the time of the incident, the conduct was not within the employee's scope of employment, and "the forseeabilty element of respondeat superior liability was not present"]; Jackson v State of New York, 69 Misc.3d 1223 [A] [Late claim application denied where the proposed claim alleged that the State was vicariously liable for the conduct of court officers, who were providing security, brutally beat, tortured and falsely imprisoned movant. The late claim application was denied based upon movant's own account that the officers' conduct was "not in furtherance of any employer-related goal whatsoever" and therefore the Court held that the officers' conduct was, as a matter of law, not within the scope of the officers' employment by the State]).
At oral argument, claimant argued that, under the Court of Appeals analysis and holding in Rivera (34 N.Y.3d 383), the State can never be held vicariously liable for an excessive use of force by a correction officer on duty. This Court rejects claimant's position as unfounded, contrary to the express language of the Court of Appeals set forth in Rivera (34 N.Y.3d at 391), and inconsistent with the very caselaw following Rivera and cited by claimant (see Apholz v State of New York, UID No. 2021-041-501 [Ct Cl, Milano, J., Apr. 29, 2021]). In Apholz, the Court, as fact finder, found that Rivera (34 N.Y.3d 383) was distinguishable on the facts because "[u]nlike Rivera, the Court has determined that [the correction officer's] use of force upon claimant was not borne of personal animosity towards claimant, nor was it utilized for wholly personal motives." The Apholz Court found that "[t]he purpose of the use of force by [the correction officer] upon claimant was to demonstrate to all of the residents of D-1 Dorm that [the correction officer] would utilize physical force to maintain order and discipline in the dorm, and that those [incarcerated individuals] choosing to interfere with or disrupt that order and discipline would be dealt with in a forceful and physical manner." Additionally, in Galloway v State of New York (212 A.D.3d 965, 968-969 [3d Dept 2023]), the State was held liable for the use of excessive force by a correction officer where the Court found that the correction officer was acting within the scope of his employment in directing claimant to comply with a pat-frisk and that the evidence of reports of inappropriate contact by the correction officer with the claimant prior to the incident led the Court to conclude that it was "clearly foreseeable that an intense encounter could result during further interactions between [the correction officer] and claimant in the context of normal employment-related activities in the prison"]).
In Rivera (34 N.Y.3d at 392), the Court of Appeals expressly stated that, "[e]ven in the absence of respondeat superior liability for assault and battery, [incarcerated individuals] may seek redress against the State in the Court of Claims on other tort theories, such as negligent hiring, training or supervision...[m]oreover, correction officers who assault [incarcerated individuals] may also be sued directly in Supreme Court (or federal court) under 42 USC § 1983 (see Haywood v Drown, 556 U.S. 729 [2009]), or on common-law tort theories for acts occurring outside the scope of employment." In the case at bar, this Court finds that a careful review of the exhibits indicates that there are genuine issues of material fact precluding summary judgement to either party as to the cause of action of negligent supervision and retention of Rodriguez and that a trial is warranted where the Court may observe the witnesses as they testify regarding Rodriguez's involvement in numerous uses of force prior to the incident, Rodriguez's conduct on January 13, 2014 which was deemed by DOCCS to be unprofessional and likely to provoke an incarcerated individual, and Rodriguez's use of force on June 24, 2015 which resulted in his 60-day suspension without pay.
As to the allegation of negligent infliction of emotional distress, the Court finds that the State effectively argues that the undisputed facts of this matter do not support this allegation as independent cause of action, but rather claimant's alleged emotional distress is an element of damages to be proven (see Johnson v State of New York, 37 N.Y.2d 378, 382 [1975] [A cause of action for negligent infliction of emotional distress is found to be applicable in very limited cases where a claimant seeks redress for emotional harm, absent physical harm, and establishes a guarantee of genuineness of the claim]).
Accordingly, claimant's motion for summary judgment on the issue of liability regarding the causes of action of: vicarious liability for Rodriguez's excessive use of force, vicarious liability for Rodriguez's assault and battery, and Rodriguez's negligent infliction of emotional distress, is DENIED and summary judgment, dismissing those allegations is GRANTED to the State.
As to the cause of action of negligent supervision and retention of Rodriguez, the Court finds that there are genuine issues of material fact which preclude an award of summary judgement to either party and therefore summary judgment on that cause of action is DENIED, and the matter will be set down for trial as soon as practicable on the one surviving cause of action.